Government Blocks Release of Documents on Secret IP Enforcement Treaty

Despite Obama's Order for Openness, Americans Still Kept in the Dark About ACTA

Washington, D.C. - The Office of the United States Trade Representative (USTR) is withholding hundreds of documents about a secret intellectual property enforcement treaty currently under negotiation between the U.S. and more than a dozen other countries.

In a pending federal lawsuit, the Electronic Frontier Foundation (EFF) and Public Knowledge are demanding that background documents on the Anti-Counterfeiting Trade Agreement (ACTA) be released under the Freedom of Information Act (FOIA). But the USTR has claimed that more than 1300 pages should be withheld because they implicate national security or expose the USTR's deliberative processes. The USTR has released only 159 pages for public viewing.

ACTA raises serious concerns about citizens' civil liberties and privacy rights. The contents and text of ACTA remain secret, but a document leaked to the public last year shows that ACTA could include stronger criminal measures, increased customs border search powers, and requirements for Internet service providers to cooperate with copyright holders. Some public suggestions from content companies have included requiring ISPs to engage in filtering of their customers' Internet communications for potentially copyright-infringing material, mandatory disclosure of personal information about alleged copyright infringers, and adoption of "Three Strikes" policies requiring ISPs to automatically terminate customers' Internet access upon a repeat allegation of copyright infringement.

"ACTA could lead to new invasive monitoring of Internet communications by your ISP and raises serious potential due process concerns for Internet users," said EFF International Policy Director Gwen Hinze. "Because ACTA is to be adopted as an Executive Agreement, it will bypass normal processes of Congressional oversight. Therefore, it is crucial that citizens have access to information about its contents in a timely manner. The USTR's decision to withhold documents that citizens are entitled to see as a matter of law prevents citizens from evaluating ACTA's impact on their lives and expressing their opinions to their political leaders before it's a fait accompli."

Despite the vast amount of relevant information that was withheld, the documents that were released disclosed some interesting information about ACTA, including records revealing U.S. government policy that ACTA documents should only be shown to government officials or others who work closely with a country's consultation process. The records also show that the U.S. government intends to "hold ACTA documents in confidence for a fixed period after negotiations conclude." But not everyone has been kept in the dark about ACTA. Officials from the USTR met privately with the major U.S. proponents of the treaty: the Global Leadership Group of the International Chamber of Commerce's Business Action to Stop Counterfeiting and Piracy and the Coalition Against Counterfeiting and Piracy at least three times in 2008.

EFF and Public Knowledge first made their FOIA request of the USTR in June of 2008. After the agency dragged its feet in responding, EFF and Public Knowledge filed suit in federal court in Washington, DC, in September of 2008. EFF plans to ask the court to stay further action in the case pending the release of new guidelines by the Attorney General implementing President Obama's January 21 memorandum stating that all agencies "should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government."

"We are disappointed with the USTR's response so far," said Public Knowledge Staff Attorney Sherwin Siy. "With the guidance of this new policy, we hope that the USTR will reassess its less-than-forthcoming compliance with our FOIA request and provide the public with the much-needed transparency and accountability about this important global agreement."

For the significant documents released under FOIA:
http://www.eff.org/fn/directory/6661/328

For more on this case:
http://www.eff.org/cases/eff-and-public-knowledge-v-ustr